Sacks & Zolonz Blog Entries 09 2010

September 2010 Blog Posts
DOT and OSHA Join Forces to Combat Distracted Driving

Thursday, September 30, 2010
In workers compensation defense news, Secretary of Labor Hilda L. Solis

recently announced that the United States Department of Labor's
Occupational Safety and Health Administration (OSHA) was joining forces with
the United States Department of Transportation (DOT) in an effort to crack
down on the dangers of distracted driving .
Specifically, the two agencies will seek to: 1) reprimand employers whose
policies encourage distracted driving (i.e., texting while driving) and 2)
educate employers lacking clearly defined polices on distracted driving.
"It is imperative that employers eliminate financial and other incentives that
encourage workers to text while driving. It is well recognized that texting
while driving dramatically increases the risk of a motor vehicle [work] injury
or fatality," said Solis.
There is no denying the dangers of distracted driving. According to DOT

estimates, nearly 5,500 people were killed in distracted-driving accidents in
the United States last year.
One of the main highlights of the joint endeavor is a multi-faceted OSHA

initiative.
Some of the key components of this OSHA initiative include:
• Formation of strategic alliances with the National Safety Council and other
safety advocacy groups dedicated to educating employers about the dangers
of distracted driving and helping them implement the necessary policies
• Posting of an open letter to employees on the OSHA website, as well as

model policies and procedures
• Coordination with other federal agencies to inform younger employees of

the dangers of distracted driving
• Launch of a formal educational campaign for all employers during "Drive

Safely Work Week" (held the week of October 4)
• Investigation and issuance of citations/penalties upon receipt of a credible
Sacks & Zolonz, LLP Blog Posts September 2010

complaints that an employer is encouraging or requiring texting while driving
"We call upon all employers to prohibit any work policy or practice that
requires or encourages workers to text while driving. The Occupational Safety
and Health Act is clear; employers must provide a workplace free of
recognized hazards," said Dr. David Michaels, Assistant Secretary of Labor for
OSHA.
Stay tuned for further other developments in the area of workers'

compensation defense ...
This post was provided for informational purposes only and is not to be
construed as legal advice.
Related Resources:
• OSHA Launching Initiative to Discourage Texting While Driving on the

Job (United States Department of Labor)
• Summit Calls for Reduction in Distracted Driving (ABC News)
9/28 - A Brief Summary of California Workers' Compensation News

Tuesday, September 28, 2010
Today's post will briefly examine workers' compensation defense news from
around the state.
A.B. 933, a proposed bill that would require all physicians who provide
services related to work comp/utilization reviews to be licensed in the state of
California, was recently vetoed by Governor Arnold Schwarzenegger.
(The following definition is provided for the uninitiated:
"A utilization review (UR) is the process used by employers or claims

administrators to review treatment to determine if it is medically necessary.
All employers or their workers' compensation claims administrators are
required by law to have a UR program. This program is used to decide
whether or not to approve medical treatment recommended by a physician
which must be based on the medical treatment guidelines."- California
Department of Industrial Relations)
According to Governor Schwarzenegger's veto message, the licensing

requirement "would be inconsistent with how utilization review is conducted
in other areas of medicine and not in line with best practices nationwide."
His statement went on to declare that "the proponents of [A.B. 933] have not
demonstrated a need for this disparity in treatment."
The bill's original sponsor, Rep. Paul Fong, D-Cupertino, believed that the
physician-licensing requirement would both increase worker protections and

generate the necessary transparency in all utilization review decisions.
A.B. 933 was met with strong resistance by several prominent organizations,
including the California Chamber of Commerce and the American Insurance
Association (AIA).
Steve Suchil, western region assistant vice president for AIA, released the
following statement regarding Governor Schwarzenegger's veto:
"We applaud the governor for vetoing a bill that would have added costs and
delays to the treatment of injured workers. It would have done nothing to
improve the actual treatment of workers. Medical guidelines are generally
consistent across all 50 states."
Stay tuned for further other developments in the area of California workers'
compensation defense ...
Related Resources:
• 9/24 Legislative Update: Vetoed (Office of Governor Arnold

Schwarzenegger)
• AIA Comments on Veto of Costly California Workers' Compensation
Measure (Insurancenews.net)
• Division of Workers' Compensation - Utilization Review (California
An Examination of California Workers' Compensation Benefits - I

Friday, September 24, 2010
As an employer in the state of California, you are more than likely familiar
with the workers' compensation system, your basic legal obligations under
state law and the potential need for a strong workers' compensation defense.
However, you may not have a true understanding of the intricacies of the
system itself.
For example, you may have seen various acronyms for work comp benefits
(PTD, TTD, TPD, etc.), and been somewhat uncertain as to what they stood
for and under what circumstances an injured employee would be entitled to
them.
Today's post is the first in a series. It is designed to help clarify California's

system of workers' compensation benefits and debunk common
misperceptions.
In California, workers' compensation benefits can be divided into two general

categories: temporary benefits and permanent benefits. These two general

categories can then be further divided into two subcategories: partial and
total.
It breaks down as follows:
Temporary
• Temporary Partial Disability (TPD)
• Temporary Total Disability (TTD)
Permanent
• Permanent Partial Disability (PPD)
• Permanent Total Disability (PTD)
Temporary Total Disability (TTD)
What is a temporary total disability?
Simply put, a temporary total disability is any injury that leaves an employee
unable to perform any aspect of their job for a short period. A TTD assumes
that the employee will fully recover and return to their previous position.
How are temporary total disability benefits paid?
The calculation for temporary total disability benefits is fairly basic: multiply
the (pre-tax) average weekly wage of the injured employee by 2/3.
When do temporary total disability payments begin and end?
The California Department of Industrial Relations provides a rather concise

summary:
"TD payments begin when your doctor says you can't do your usual work for
more than three days or you get hospitalized overnight. Payments must be
made every two weeks. Generally, TD stops when you return to work, or
when the doctor releases you for work, or says your injury has improved as
much as it's going to."
It is important to note that in California, an injured employee is eligible to

receive 104 weeks of temporary total disability payments within a five years
period (beginning from the date of the injury).
Future posts will continue to discuss California work comp benefits ...

Stay tuned for further developments in the area of workers' compensation
defense ...
Related Resources:
• Work Comp 101: Lost Time Indemnity Benefits

Explained (WorkersCompensation.com)
• CHSWC Summary of System Changes in California Workers' Compensation
(The California Commission on Health and Safety and Workers'
Compensation)
• Answers to Frequently Asked Questions About Workers' Compensation For
Employees (California Department of Industrial Relations)
Common California Construction Site Injuries - III

Wednesday, September 22, 2010
Today's workers' compensation defense post will continue to explore the

topic of common injuries suffered by employees on construction sites. Please
see "Common California Construction Site Injuries - I" and "Common
California Construction Site Injuries- II" for more information.
Visit any construction site around the state of California, and you will see
workers performing a variety of physically challenging tasks that require
them to kneel, crouch, bend over or stoop forward for a prolonged period.
While these types of actions are a vital element of job performance, they can
also result in potentially debilitating injuries to the knees or lower back,
decreased production and increased legal fees.
However, employers who are aware of these potential knee and lower back
injuries can take steps to implement the necessary safety measures, saving
their organization both time and money.
Lower Back Injuries
There are small gelatinous discs located between the vertebrae of the spine
that enable movement. When a worker bends over, these discs are
compressed by both the ligaments and the back muscles.
However, if a worker is required to remain bent over for a prolonged period of

time, these discs in their back can weaken and even rupture. This rather
painful condition is known as a herniated disc.
In addition, workers also frequently suffer serious muscle strains or pulls in

their lower backs. These conditions are typically caused by sudden, violent
motions or repetitive motions.
Knee Injuries
Workers who place significant strain on their knees on a regular basis can

suffer a rather serious condition known as bursitis. Bursitis is caused by an
inflammation of the bursa, tiny fluid sacs located between the tendons and
bones in the leg/knee. An inflamed or swollen bursa makes knee movement
painful or even impossible.
Another common injury suffered by workers who frequently place great stress
on their knees is tendinitis. This condition is caused by inflamed muscle
tendons and can make knee movement difficult (if not impossible).
Lastly, construction workers who have previously suffered a debilitating knee

injury but continue to perform ground-related work are predisposed to
arthritis.
Future posts will examine this topic in greater detail, including potential steps
that can be taken to prevent these knee and lower back injuries ...
This post was provided for informational purposes only and not to be
construed as legal or medical advice.

defense law ...
Related Resources:
• Simple Solutions for Lifting, Holding and Handling Materials (National

Institute for Occupational Safety and Health)

NICB: Referrals for Investigation of Possible Work Comp Fraud Decline By 9

Percent in 2010
The National Insurance Crime Bureau (NICB), the non-profit organization that
"partners with insurers and law enforcement agencies to facilitate the
identification, detection and prosecution of insurance criminals" recently
released a study concerning the incidence of workers'
compensation/employee fraud in the first half of 2010.
The results?
The number of dubious claims (i.e., potentially fraudulent workers

compensation claims) referred to the NICB for investigation in the first half of
2010 was nine percent less than the previous year.
Specifically, the following categories all demonstrated significant decreases

in the number of potential work comp/employee fraud claims submitted for
review:

• Prior injury/not related to work
• Claimant fraud
• Working while collecting
These three categories accounted for 72 percent of all referrals submitted to

the NICB.
Workers compensation fraud/employee fraud is a very serious crime. If you

suspect that such a crime has been perpetrated against your organization,
you should strongly consider speaking with an experienced workers' comp
defense attorney.
Update: WCIRB to Recommend Significant Increase in Work Comp Base Rates
The Workers' Compensation Insurance Rating Bureau (WCIRB) of California

made headlines this summer when it recommended a 30 percent increase in
the workers' compensation rates that insurance companies charge employers
across the state.
In recent developments, WCIRB announced that it will be amending it

submission to Insurance Commissioner Steve Poizner. Specifically, the
organization will now be recommending a 27.7 increase in work comp rates, a
reduction of two percent.
The original filing to the Insurance Commissioner indicated that WCIRB would
review certain data made available June 30 (accident year experience), and,
if necessary, amend its recommendations.
A public hearing on the proposed rate increase is scheduled for September

28.
The proposed 30 percent increase would affect all new and renewed policies
starting January 1.
(Please see "WCIRB to Recommend Significant Increase in Work Comp Base

Rates" for more information.)
Stay tuned for further news on developments in the area of

California workers' compensation defense ...
Related Resources:
• Overall Reports of Workers' Comp Fraud Fell 9 Percent in First Half of

'10 (Risk & Insurance)
• Calif. Rating Bureau Wants to Lower Recommended Workers' Comp Rate

2% (Insurance Journal)
• About NICB (National Insurance Crime Bureau)

Today's post will briefly examine workers' compensation defense news from
around the state.
A.B. 933, a proposed bill that would require all physicians who provide
services related to work comp/ utilization reviews to be licensed in the state
of California, was recently approved by the Senate Labor and Industrial
Relations Committee.
(The following definition is provided for the uninitiated:
"A utilization review (UR) is the process used by employers or claims

administrators to review treatment to determine if it is medically necessary.
All employers or their workers' compensation claims administrators are
required by law to have a UR program. This program is used to decide
whether or not to approve medical treatment recommended by a physician
which must be based on the medical treatment guidelines."- California
The bill's sponsor, Rep. Paul Fong, D-Cupertino, believes that the physician-
licensing requirement will both increase worker protections and generate the
necessary transparency in all utilization review decisions.
"California is the only state that requires doctors to obtain 12 hours of

special education on pain management, which is the leading cause of
disability. During these tough times, it's critical that safe and equitable laws
are in place to protect Californians when they are hurt on the job," said Fong.
A.B. 933's main adversary is the California Chamber of Commerce. The

institute believes that the bill would 1) create unnecessary delays for the
state Division of Workers' Compensation by requiring that the term of
approval for the medical provider network to be submitted every three years
and 2) increase costs significantly.
The Chamber of Commerce also believes that there is relatively little

evidence to support the notion that the care of injured workers would be
greatly improved by a mandatory physician-licensing requirement.
"California's workers' compensation law already contains strict requirements

to assure that physicians who make utilization review decisions use evidence-
based standards and are competent to evaluate the specific medical issues in
the workers' compensation claim. Limiting the ability to make utilization
review recommendations to physicians licensed in California would only limit
the number of doctors available to provide the service, thereby creating a

logjam of cases to be reviewed and driving up the cost of the review and
overall costs for employers," the organization stated.
Following its unanimous approval by the Senate Labor and Industrial

Relations Committee, A.B. 933 is now referred back to the Senate Committee
on Appropriations.
Stay tuned for further news on A.B. 933 and other developments in the area
of California workers' compensation defense ...
Related Resources:
• California: Chamber Says Recently Approved Bill Will Increase WC Costs

(Risk & Insurance)
• Division of Workers' Compensation - Utilization Review (California

Common California Construction Site Injuries - II
Today's workers' compensation defense post will continue to explore the

topic of common injuries suffered by employees on construction sites. Please
see "Common California Construction Site Injuries - I" for more information.
workers operating heavy equipment, carrying heavy loads, pushing or pulling
building materials, lifting lumber or holding roofing tiles over their heads.
also result in potentially debilitating injuries, decreased production and
increased legal fees.
However, employers who are aware of these potential injuries can take steps
to implement the necessary safety measures, saving their organization both
time and money.
The following safety measures, if implemented correctly, can greatly reduce

the incidence and/or duration of the aforementioned construction site
injuries.
Safety Measures
User-friendly Materials
If economically feasible and permitted by the client, the implementation of

certain "user-friendly" building materials/components can have a significant
impact on neck, back and spine injuries
"User-friendly" materials are those that can be handled by workers without

extensive exertion, repetitive motion or uncomfortable body posture.
To illustrate, it may be beneficial to use to half-weight bags of concrete or

lighter construction blocks. Please note, such an action is generally subject to
approval by engineers, architects, contractors, clients, etc.
User-friendly Tools
Another potential method of reducing the number of serious neck, back and
spine injuries is to use "user-friendly" construction tools and devices,
meaning those that reduce the need for workers to pull, hold, lift or carry
heavy materials.
Examples of these user-friendly tools include:
• Jacks and stands
• Dollies and Rolling carts

• Specialized grips and handles
• Mechanical lifts, vacuum lifts and hydraulic lifts
Again, such an action is generally subject to approval by engineers,

architects, contractors, clients, etc.
Stay tuned for more from our Los Angeles County workers' compensation
defense blog...
Related Resources:

Court of Appeal Opinion on Guzman Upholds WCAB Expansive Use of

AMA Guides
In an opinion released at the end of August, the Court of Appeal for the Sixth
Appellate District, in the case of Milpitas Unified School District vs. WCAB &
Joyce Guzman, affirmed the WCAB En Banc opinion.
The Court concluded that the language of Section 4660 permits reliance on
the entire Guides, including the instructions on the use of clinical judgment in
deriving an impairment rating in a particular case.
Essentially, this does not change the current practice because the Board's
decision was En Banc, meaning it was binding on all judges until overturned
on appeal. This first appeal gives solid credence to the reasoning of the
WCAB and opens the door to the next level for the defendants: the Supreme
Court. Of course, had the decision been the reverse, the outcome would have
been the same: further appeal.
It's important to note that multiple additional parties had joined the district in
their appeal by filing Amicus Curiae briefs and had essentially argued that the
Guides must be used "as written" in order for the Schedule for Rating
Permanent Disabilities to promote consistency, uniformity, and objectivity.
The district took the position on appeal that the Schedule is rebuttable, but
the criteria set forth in the Guides are not for purposes of making a
determination of whole person impairment. That objective is defeated if
impairment ratings could be based on chapters that do not apply to the
employee's injury.
While the Court agreed with the district in theory and stated that the Guides
should be applied "as intended," the Court further said that one must take

into account the instructions on its use, "...which clearly prescribe the
exercise of clinical judgment in the impairment evaluation, even beyond the
descriptions, tables, and percentages provided for each of the listed
conditions." The Court agreed with the WCAB's expansionist view regarding
multiple chapter use where appropriate in the judgment of the physician.
This agreement was in spite of the arguments made by many brief filers and
the district that potential abuses could occur.
A copy of the full opinion can be found here. In the weeks ahead much focus
and interpretation of this opinion is certain to come. One fact remains: This
is not the last word on this highly important issue.
CA Legislature Sends Much-Discussed Work Comp Bill to Governor

Tuesday, September 7, 2010
Today's workers' compensation defense post will take a closer look at A.B.
2490, an interesting piece of legislation passed by both the Assembly and the
Senate by rather wide margins, and now submitted to Governor
Schwarzenegger for final approval.
A.B. 2490, sponsored by Assemblyman Dave Jones (D-Sacramento), would

prevent work comp insurance companies from resolving their disputes with
California employers in other states with more favorable arbitration
provisions (unless both parties agree). In other words, Davis' legislation
would mandate that work comp insurers resolve disputes with California
employers in a California venue/forum in accordance with California law.
If passed, A.B. 2490 would apply only to those employers that utilize
California as their principal place of business, and generally affect
agreements between work comp insurers and rather complex employers (i.e.,
those with a business presence in several states).
It is worth noting that even though work comp insurance policies must be
approved by the insurance commissioner, it is still no guarantee that these
unfavorable arbitration provisions will not make their way into the final
agreement. In fact, it is common practice for insurers to reach "side
agreements" whereby an employer must travel to another jurisdiction (and
rely on that jurisdiction's arbitration laws) in the event of a dispute.
According to Jones, this has been "a big problem."
While the state legislature has expressed widespread support for the
measure, The American Insurance Association (AIA) has asked Governor
Schwarzenegger to veto A.B. 2490. (The state Chamber of Commerce has
changed its position from opposition to neutral.)
"AIA will request that the governor veto several bills that are unnecessary,
impede an insurer and business owner's ability to contract ...," said AIA
assistant vice president of state affairs, Steve Suchil.

defense ...

Related Resources:
• California Lawmakers Advance Workers' Comp Bills, Including Arbitration

Restriction (InsuranceNews.net)
Common California Construction Site Injuries - I

Today's workers' compensation defense post will explore some of the more
common injuries suffered by employees on construction sites.
workers operating heavy equipment, carrying heavy loads, pushing or pulling
building materials, lifting lumber or holding roofing tiles over their heads.
also result in potentially debilitating injuries, decreased production and
increased legal fees.
Employers who are aware of these potential injuries can take steps to
implement the necessary safety measures, saving their organization both
time and money.
Back Injuries
There are small gelatinous discs located between the vertebrae of the spine
that enable movement. When a worker pushes, pulls, lifts, stretches, bends
or performs any other type of physical activity, these discs are compressed
by both the ligaments and the back muscles.
However, if a worker is required to remain bent over for a prolonged period of

time, the discs in their back can weaken and eventually rupture. This rather
painful condition is known as a herniated disc.
In addition, workers also frequently suffer serious muscle strains or pulls in

their backs. These conditions are typically caused by sudden, violent motions
or repetitive motions.
Shoulder and Neck Injuries
Workers who place significant strain on their shoulders on a regular basis can
suffer a rather serious condition known as bursitis. Bursitis is caused by an
inflammation of the bursa, tiny fluid sacs located between the tendons and
bones in the shoulder. An inflamed or swollen bursa makes shoulder
movement painful or even impossible.
Another common injury suffered by workers who frequently place great stress
on their shoulders is tendinitis. This condition is caused by inflamed shoulder
tendons and can make shoulder movement difficult (if not impossible).

Future posts will examine this topic in greater detail, including potential steps
that can be taken to prevent these injuries ...
construed as legal advice. Stay tuned for further developments in the area of
workers' compensation defense law ...
Related Resources:


Sacks &amp; Zolonz Blog Entries 09 2010

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September 2010 Blog Posts

DOT and OSHA Join Forces to Combat Distracted Driving

In workers compensation defense news, Secretary of Labor Hilda L. Solis

There is no denying the dangers of distracted driving. According to DOT

One of the main highlights of the joint endeavor is a multi-faceted OSHA

Some of the key components of this OSHA initiative include:

• Posting of an open letter to employees on the OSHA website, as well as

• Coordination with other federal agencies to inform younger employees of

• Launch of a formal educational campaign for all employers during "Drive

• Investigation and issuance of citations/penalties upon receipt of a credible

Sacks & Zolonz, LLP Blog Posts September 2010

Stay tuned for further other developments in the area of workers'

• OSHA Launching Initiative to Discourage Texting While Driving on the

9/28 - A Brief Summary of California Workers' Compensation News

(The following definition is provided for the uninitiated:

"A utilization review (UR) is the process used by employers or claims

According to Governor Schwarzenegger's veto message, the licensing

Sacks & Zolonz, LLP Blog Posts September 2010

• 9/24 Legislative Update: Vetoed (Office of Governor Arnold

An Examination of California Workers' Compensation Benefits - I

Today's post is the first in a series. It is designed to help clarify California's

In California, workers' compensation benefits can be divided into two general

Sacks & Zolonz, LLP Blog Posts September 2010

It breaks down as follows:

• Temporary Partial Disability (TPD)

• Temporary Total Disability (TTD)

• Permanent Partial Disability (PPD)

• Permanent Total Disability (PTD)

Temporary Total Disability (TTD)

What is a temporary total disability?

How are temporary total disability benefits paid?

When do temporary total disability payments begin and end?

The California Department of Industrial Relations provides a rather concise

It is important to note that in California, an injured employee is eligible to

Sacks & Zolonz, LLP Blog Posts September 2010

• Work Comp 101: Lost Time Indemnity Benefits

Common California Construction Site Injuries - III

Today's workers' compensation defense post will continue to explore the

Lower Back Injuries

However, if a worker is required to remain bent over for a prolonged period of

In addition, workers also frequently suffer serious muscle strains or pulls in

Sacks & Zolonz, LLP Blog Posts September 2010

Lastly, construction workers who have previously suffered a debilitating knee

Stay tuned for further developments in the area of workers' compensation

• Simple Solutions for Lifting, Holding and Handling Materials (National

9/17 - A Brief Summary of California Workers' Compensation News

NICB: Referrals for Investigation of Possible Work Comp Fraud Decline By 9

The number of dubious claims (i.e., potentially fraudulent workers

Specifically, the following categories all demonstrated significant decreases

Sacks & Zolonz, LLP Blog Posts September 2010

• Working while collecting

These three categories accounted for 72 percent of all referrals submitted to

Workers compensation fraud/employee fraud is a very serious crime. If you

Update: WCIRB to Recommend Significant Increase in Work Comp Base Rates

The Workers' Compensation Insurance Rating Bureau (WCIRB) of California

In recent developments, WCIRB announced that it will be amending it

A public hearing on the proposed rate increase is scheduled for September

(Please see "WCIRB to Recommend Significant Increase in Work Comp Base

Stay tuned for further news on developments in the area of

• Overall Reports of Workers' Comp Fraud Fell 9 Percent in First Half of

Sacks & Zolonz, LLP Blog Posts September 2010

9/15 - A Brief Summary of California Workers' Compensation News

(The following definition is provided for the uninitiated:

"A utilization review (UR) is the process used by employers or claims

Sacks & Zolonz Blog Entries 09 2010

Sacks & Zolonz Blog Entries 09 2010